Other Disclosure

Production of Documents

The Court may at any time during pendency of an action, order the production by any party on oath, of such of the documents in his possession or power, relating to any matter in question or cause, as the Court shall think fit.  A Court may deal with such documents, when produced, in such manner as shall appear just.

Every party to a matter shall be entitled by a notice in writing, to give notice to another party, in whose pleadings or affidavit or list of documents, reference is made to any document, to produce such document for inspection by or on behalf of the party giving notice or his solicitor and to permit copies thereof, to be taken.

Any party not complying with such notice shall not afterwards be at liberty to put such document in evidence on his behalf in such matter, unless he shall satisfy the Court that such document relates only to his title, where he as a defendant in the matter or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice.  In this case, the Court may allow the same to be put in evidence on such terms as to costs and otherwise as it thinks fit.

Notice to Produce

Notice to produce documents referred to in pleadings or affidavit is in a prescribed format. The party to whom notice is given, shall, within two days from the receipt of such notice, if all the documents referred to have been set out by him in such affidavit or list as is mentioned above, or if the documents referred to in the notice have been set forth in such affidavit or list, then within four days of such notice, deliver to the party giving the same, a notice stating a time within three days from the delivery, at which the documents or such of them as he does not object to produce, may be inspected at the office of a solicitor, or in the case of bankers’ books or other books of account, or books in constant use for a trade or business, at their usual place of custody.  He shall state which documents he objects to produce and on what grounds.  The notice is in a prescribed form.

If a party served with notice to produce omits to give such notice of a time for inspection or objects to give inspection,  or offers inspection elsewhere than at the office of his solicitor, the Court may, on application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit.

Application and Order for Inspection

Except in the case of documents referred to in the pleadings or affidavits of the parties against whom the application is made or disclosed in his affidavit or list of documents, such application shall be founded on an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them and that they are in the possession or power of the other party.

An order shall not be made if, and so far as the Court is of opinion that it is not necessary either for disclosing fairly of the matter or for saving costs.

If the party from whom discovery of any kind or inspection is sought, objects to the same or any part of it, the Court may, if satisfied that the right to the discovery or inspection depends on the determination of any issue or question in dispute in a matter, or that for any other reason, it is desirable that any issue or question in dispute in the matter should be determined before deciding upon the right to the discovery or inspection, order that the issue be determined first and reserve the question as to the discovery or inspection.

Where inspection of any business books is applied for, the Court may, instead of ordering inspection of the original book, order a copy of the entries to be furnished and verified by affidavit of a person who has examined the original entries.

Where on an application for an order for inspection, privilege is claimed, the Court may inspect the documents for the purpose of deciding as to the validity of the claim for privilege.

The Court may, on application of any party to a matter, make an order requiring any other party to state by affidavit whether any one or more documents, specified in the application, is or are or has at any time been in his possession or power, and if not in his possession, when he parted with the same, and what has become of them.

The application shall be made on affidavit stating that in the belief of the deponent, the party against whom the application is made has at some time had in his possession or power, the documents specified in the application and that they relate to matters in question in the case.

Third Party Discovery

Any person not a party to the matter before a Court who appears to the Court to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising in or likely to arise out of the matter or is likely to be in a position to give evidence relevant to such issue, may by leave of the Court upon the application of any party be directed by Court order to answer such interrogatories or to make such discovery or to permit inspection of such documents.

The provisions of the order apply as if the order of Court has been directed to a party to the action.  The party seeking such order must indemnify such person in respect of costs thereby reasonably incurred.  The costs are deemed costs of that party in the case.

Without prejudice to the above rule and  any rule of law under which the non-party would be entitled or have a duty to withhold disclosure of information, where a person not a party to the cause or matter before the Court (in this rule, the “non-party”) has access to information which is not reasonably available to a party to the cause or matter, and which the Court is satisfied would not have been procurable by means of discovery made, or answers to interrogatories given by the person, the Court may, on the application of a party by motion on notice to the non-party, and unless it is satisfied that it would not be in the interests of justice that the information concerned be disclosed, make an order directing the non-party who has access to the information to—

• prepare and file a document recording the information; and
• serve a copy of that document on the parties to the cause or matter.

Application for Third Party Discovery

An application  shall be supported by an affidavit sworn by or on behalf of the moving party, which shall set out the grounds on which the moving party believes that:

• the information sought is not reasonably available to the moving party;
• the information would not have been procurable by means of discovery made, or answers to interrogatories
• the information sought is reasonably available to the non-party against whom such an order is sought;
• the information sought is likely to support the case of the moving party or adversely affect the case of one of the other parties to the cause or matter; and
• disclosure of the information sought is necessary in order to dispose fairly of the claim or to save costs.

The non-party may deliver and file an affidavit in reply.

Order for Third Party Discovery

The Court may make an order only where—

• the information of which disclosure is sought are likely to support the case of the moving party or adversely affect the case of one of the other parties to the cause or matter; and
• disclosure of the information sought is necessary in order to dispose fairly of the claim or to save costs.

The order shall  specify the information or the classes of information which the non-party must disclose; and  require the non-party, when making disclosure, to specify any such information  which is no longer in the non-party’s control; or  in respect of which the non-party claims an entitlement or duty to withhold disclosure.

An order may require the non-party to indicate what has happened to such information which is no longer in the non-party’s control; and may include directions as to the time and manner of disclosure of the information.

The moving party seeking an order for third party discovery shall indemnify the non-party in respect of all costs thereby reasonably incurred by that person and such costs borne by the said party shall be deemed to be costs of that party.

An order for third party discovery shall not be made unless:

• the moving party shall have previously applied by letter in writing requesting that disclosure be made voluntarily; and
• a reasonable period of time for such discovery has been allowed; and
• the non-party requested has failed, refused or neglected to make such disclosure or has ignored such request.

In any case where by reason of the urgency of the matter or the consent of the moving party and the non-party against whom such order is sought, the nature of the case or any other circumstances which to the Court seem appropriate, the Court may make such order as appears proper, without the necessity for:

• the prior application in writing  or
• the issue and service of the notice of motion , provided that in any such case, a non-party affected who has not been heard by the Court before the making of such order may apply to the Court by motion on notice to the moving party to set aside or vary such order.

Interrogatories

In any matter where relief is claimed by way of damages or otherwise ise sought on the ground of fraud or breach of trust, the claimant may, after delivering his statement of claim and the defendant may at any time after delivering his defence, without an order, and in every other case may with an order upon such terms as the security for costs or otherwise, as the Court may direct, deliver interrogatories in writing for examination of the opposite party or one or more of them.

Such interrogatories when delivered shall have a note stating which of the interrogatories each person is to answer.  No party shall deliver more than one set of interrogatories to the same party without an order for that purpose.  Interrogatories which do not relate to any matters in question in the cause or matter shall be deemed irrelevant notwithstanding that they may be admissible on oral cross examination.

A copy of interrogatories proposed to be delivered is to be delivered with the notice of application for leave to deliver them, unless the Court otherwise orders.  The interrogatories sought to be delivered shall be submitted to and considered by the Court.

In deciding on the application, the Court shall take into account any offer which may be made by the party sought to be interrogated, deliver particulars or make admissions or to produce documents relating to the matter in question.  Leave should be given as to such only of the interrogatories as should be necessary either for disposing fairly of the cause or matter or for saving costs.

If interrogatories have been issued exhibited, unreasonably, vexatiously or of  improper length, the costs occasioned by them may be required to be paid on taxation by the party at fault.

Interrogatories are in a prescribed form.

In the case of companies, interrogatories may be delivered to any member or officer of such corporation for response.

Any objection to answering interrogatories on the ground that they are scandalous, irrelevant, not bona fide for the purpose of the cause or the matters inquired into,  not sufficiently material at that stage or on other ground, may be taken in the affidavit in answer.

Interrogatories may be set aside on the ground that they are have been issued  unreasonably, vexatiously or on the ground that they are prolix, oppressive, unnecessary, or scandalous.  An application for this purpose may be made within seven days after service.

Answer to Interrogatories

Interrogatories shall be answered by affidavit to be filed within ten days or such other period,  as the Court allow.  Answers to interrogatories are to be in a prescribed form.

No exception shall be taken to any affidavit in answer.  The sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court on motion.

If any person interrogated omits to answer or answers insufficiently, the party interrogating may apply to Court for an order requiring him to answer or to answer further, as the case may be.  The order may require him to answer by affidavit or verbally by examination.